The basics of legislative history in South Dakota.

• Author: Spurlin, Candice

To determine the legislative intent of a statute in South Dakota, the law states that the words used in statutes are to be understood in their ordinary sense. The South Dakota Supreme Court states that resorting to legislative history is only justified when legislation is ambiguous or its literal meaning is absurd or unreasonable. This article enumerates which documents may be considered as part of the legislative history in the case o fan ambiguous statute.

1. INTRODUCTION

   A question commonly asked by students and lawyers at the law library is: "How can I find a legislative history of a South Dakota law? I want a clarification of the intention of the lawmakers at the time the bill was passed." The answer is very simple in South Dakota. The South Dakota Supreme Court and South Dakota statutes say the true intent of the legislature must be ascertained primarily from the language of the statute itself.

   While it is possible to track the changes in our law by referring to prior session laws and bills, the intention of the legislators is not so simple. Committee and conference reports, hearings, expert testimony, and congressional debates--documents that the federal government publishes to help establish the intention of an enacted federal law--are not available in our state. South Dakota's Legislative Research Council ("LRC") continues to publish more information on its website with each passing year, but documentation of intent such as debates, hearing, and committee reports are not available.

   This article is intended to point the researcher to the legislative documents that exist in our state and how and where they may be accessed. In addition, it briefly describes the legislative process, the court's treatment of legislative histories, the role of the LRC, and the sources that may be consulted when tracing the history of the enacted legislation.

   The advent of electronic research has enabled quick access to many sources, however, in most cases, the electronic information only dates back to the mid-1990s. A list of sources, electronic and hard copy, which the researcher may consult for background documentation of a law, is compiled at the end of the article along with a list of libraries and government offices that house hard copy documents.

2. SOUTH DAKOTA LEGISLATIVE PROCESS

   Before 1964, the South Dakota Legislature met biannually. From 1964 through 2009, the legislature met annually for thirty-five days in even years and forty days in odd years. (1) In the general election of 2008, state voters amended the South Dakota Constitution to change all sessions to forty days. (2)

   All bills drafted for the session are assigned a number and introduced in the South Dakota House or Senate. Each bill receives a first reading and is assigned to a committee. The committee considers the bill and issues a report. The bill is read a second time, debated, and voted upon in the legislative house-of-origin. If passed, the engrossed bill (3) is sent to the second house where it undergoes the same proceedings as it did in the first. Upon passing both the house and the senate, the bill is enrolled (4) and sent to the governor to be signed. (5) The governor may sign the bill or choose to allow the time to expire before he has to sign. (6) In either instance the bill is sent to the secretary of state and becomes law. However, if the governor vetoes the bill, it is returned to the legislature for consideration. Each house must pass the bill by a two-thirds vote to override the governor's veto. (7) A bill becomes effective on July 1 in the year that it passes, (8) unless it is an emergency measure, which takes effect immediately. (9) South Dakota voters have the option of preventing the law from becoming effective by filing a petition with the secretary of state within ninety days of the legislature's adjournment. The enacted bill becomes a referred law and a ballot measure in the next general election, (10) and the electorate votes to decide the fate of the law.

3. HISTORY OF THE COURT'S USAGE OF STATE LEGISLATIVE HISTORIES

   In its interpretations of state statutes, the South Dakota Supreme Court has been extremely reluctant to go beyond the language of the statute. According to the court, "the true intent of the Legislature must be ascertained primarily from the language of the statute itself, without resort to extraneous devices." (11) According to the court, "the true intention of the law which is to be ... ascertained primarily from the language expressed in the statute." (12) The only time a court may look beyond the text of the statute is when that statute is ambiguous. In such a case, the court may resort to legislative history. (13) According to the rule in South Dakota, courts can resort to legislative history "only when legislation is ambiguous, or its literal meaning is absurd or unreasonable." (14)

   In cases of statutory ambiguity, the South Dakota Supreme Court has stated that a number of different sources may be consulted in order to determine legislative intent. Such sources include: "the language of the act, including its title, the history of its...